Monroy and Barnard (Child support)

[2023] AATA 1654

Monroy and Barnard (Child support) [2023] AATA 1654 (5 May 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC025248

APPLICANT:  Ms Monroy

OTHER PARTIES:  Child Support Registrar

Mr Barnard

TRIBUNAL:Member H Moreland

DECISION DATE:  05 May 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change in care in the care of [the child] from 3 June 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Ms Monroy and Mr Barnard are the parents of [the child], as well as two other children who are not subject to this matter. On 15 July 2022, Services Australia – Child Support (Child Support) decided that Ms Monroy had a care percentage of 69% and Mr Barnard had a care percentage of 31% with regard to [the child], from 3 June 2022. On 16 September 2022, Ms Monroy objected to this decision; and on 5 December 2022, an objections officer disallowed Ms Monroy’s objection.

2. On 12 December 2022, Ms Monroy lodged an application with the Social Services & Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. The hearing took place on 4 May 2023. Ms Monroy and Mr Barnard spoke to the Tribunal via conference telephone and each of them gave sworn evidence/on affirmation.

3. In making its decision, the Tribunal considered the documents provided by Child Support (265 pages), which were also sent to Ms Monroy and Mr Barnard. Ms Monroy provided additional documents (numbered A1–A114) and Mr Barnard also provided additional documents (numbered B1–B114). Further submissions were made in relation to the matter, prior to the hearing, but were not numbered and exchanged as the Tribunal was unable to establish the relevance of this material to the matter in question because the material related to a different time period.

4. During the hearing, Mr Barnard asked if additional submissions could be made after the hearing. The Tribunal informed Mr Barnard that either party could continue to make submissions until the decision was finalised. Ms Monroy contacted the Registry after the hearing and asked that any additional submissions by Mr Barnard not be exchanged with her. Mr Barnard then provided additional submissions, numbered B115-B120. Given the request by Ms Monroy, the Tribunal decided to not exchange Mr Barnard’s submissions numbered B115-B120 with her. The Registry then sent an email to Ms Monroy informing her that the Tribunal had decided, based on her request, to not send pages B115-B120 to her but that they were available from the Registry should she request them at a later date. Relevant aspects of the evidence and material before the Tribunal will be referred to in the Tribunal’s consideration of the issues to be decided.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act.

2. Subsection 54F(1) of the Assessment Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child.

3. The Tribunal also referred to the Child Support Guide (the Guide) in making this decision. The Guide contains government guidelines and policy as to how to apply the legislation. The Tribunal acknowledges that, while it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[1] In the recent case of G v MIBP,[2] the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

   [1] (1979) 2 ALD 634.

   [2] [2018] FCA 1229.

4. At 2.2.2 Care determinations & changes in care,[3] the Guide states:

   [3] < in pattern of care

   When considering whether to make a new care determination, the Registrar will consider whether there has been a change to the existing pattern of care. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event is used to determine the commencement of the care period (2.2.1). The Registrar will need to determine the percentage of care that is likely to occur in the care period.

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case. In cases where a person's care percentage would drop below 14%, the Registrar may make a below regular care determination (see 2.2.3 for more information).The Registrar will consider all the information provided to determine if there has been a change in the pattern of care.

   Example: Marissa and Ryan are the parents of 2 children. The children live mainly with Marissa. Ryan has care every Saturday night, some Friday nights and some holiday care, totalling 92 nights (or 25%) over the course of a year.
   Ryan calls Services Australia on 22 March advising he now has more care of the children, as the children are spending every Friday night with him. Marissa confirms the children are staying with Ryan every Friday night so they can attend Little Athletics on Saturday mornings. The change happened about 6 weeks ago and is likely to continue for the rest of the school year.
   The Registrar is satisfied there has been a change in the pattern of care from the first Friday when Ryan began to consistently have more care.

   Not all changes in care will result in a change to the care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

   Example: Jane and Gary are the parents of 3 children. The children live mainly with Jane. Gary has care every second Saturday night, some Friday nights and some holiday care, totalling 52 nights. This is a care percentage of 14%.
   Jane calls Services Australia advising Gary did not have care as expected last Friday and Saturday. Jane states the parents have not made an agreement about the care, but, rather, the arrangements had evolved in line with their habits. Jane requests that the assessment be amended.
   Gary advises he did not have care of the children due to an unexpected family situation. He anticipates the usual arrangements will resume with his next scheduled care. Jane advises she is uncertain of future care arrangements. She confirms the care arrangements have followed the same pattern for the last 2 years.
   The Registrar determines that the pattern of care that was used to determine the current care percentages is likely to continue. The Registrar determines that Gary is likely to have a care percentage of 14% for the care period. As the care percentage has not changed, the assessment is not amended.
   Example: Nic and Jo are the parents of 3 children. The children live mainly with Nic. Jo has care every Saturday night, some Friday nights and some holiday care, totalling 92 nights or 25%.
   Jo calls Services Australia on 22 March advising that she now has more care of the children, as the children have spent the last 3 Friday nights with them. Based on these arrangements Jo will have significantly more care of the children.
   Nic advises that the children have stayed with Jo for the last 3 Friday nights as Nic has been undertaking a course on those nights. There is only one more night of the course to attend and then the previous care arrangements will resume.
   The Registrar is not satisfied that there has been a change in the pattern of care. The Registrar determines that the pattern of care that was used to determine the current care percentages is likely to continue. The Registrar determines that Jo is likely to have a care percentage of 25% for the care period. As the care percentage has not changed, the assessment is not amended.

…

One-off block of 100% care
Where a parent or non-parent carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (sections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, a party may notify the Registrar of the change in care, and the Registrar will consider whether to make a new care percentage determination.
The period of unexpected care will generally need to be at least 4 weeks in length in order for the Registrar to make such a determination. However, shorter periods can be considered, especially where there is a possibility the period may be extended.

Example: Jason and Anita have one child, Robyn. Robyn usually lives with Jason 100% of the time. Jason needs to go to hospital for 3 weeks for an operation, and may require a further period of intensive rehabilitation where he will not be able to care for Robyn. Anita will look after Robyn during this time. The Registrar makes a one-off block of 100% care decision. When Robyn returns to Jason's care, Jason contacts Services Australia and the Registrar makes a new care decision based on the ongoing care of each parent.

Was there a change in the care of [the child]?

The Court Orders and the Child Support decision

1. As shown in the Child Support papers, there is a court order in relation to the care of [the child]. According to consent orders dated 25 March 2022, [the child] was to live with Ms Monroy until Term 4, 2022, when [the child] was to spend each alternate Friday from the conclusion of school until 5 pm the following Saturday, commencing the second Friday in Term 4, 2022.[4]

   [4] Child Support papers, p 86.

2. The orders also provide that Mr Barnard was to have overnight care of [the child] for Father’s Day 2022, from the conclusion of school Friday immediately before Father’s Day until before school on Monday and if it was a non-school day, then 9 am Monday. The Tribunal notes that Father’s Day in 2022 was on Sunday 4 September and the school term dates for New South Wales show that Term 4 ran from Monday 10 October 2022 to Tuesday 20 December 2022. The Tribunal finds that this means that, according to the Court Orders, Mr Barnard was to have no scheduled overnight care of [the child] between 25 March 2022 and Friday 2 September 2022 (the Friday before Father’s Day).

3. In the lead-up to this period, according to the orders, Mr Barnard was to have care of [the child] during the day only. Both Ms Monroy and Mr Barnard told the Tribunal that their interpretation of the orders were that there was to be an increasing level of care for [the child], by Mr Barnard over time. Ms Monroy also highlighted that the orders provided for the care to increase to more nights over time; and for [the child] to be able to have some control over the time he spends with Mr Barnard.

4. According to the Child Support papers, Mr Barnard contacted Child Support on 21 June 2022 to inform Child Support that the care of [the child] changed on 3 June 2022. According to the papers, Mr Barnard told Child Support that [the child] had decided to stay with Mr Barnard for more than the court-ordered time and that for the period from 3–20 June, [the child] had stayed with Mr Barnard for 14 nights.[5] As a result of this notification, Child Support decided that Ms Monroy had a care percentage of 69% (251 nights per year); and Mr Barnard had a care percentage of 31% (114 nights per year).[6]

   [5] Centrelink papers, p 19.

   [6] Centrelink papers, p 19.

5. According to the Child Support papers, Mr Barnard told Child Support that from 3 June 2022, [the child] would stay with him for two nights each fortnight, as well as half of each school holidays. The Tribunal, noting that there is generally 38.5 school weeks in a year, finds that this arrangement would equate to 87 nights per year, or a care percentage of 24%, calculated as follows:

Arrangement	Nights
School term weeks 38.5 = 270 nights, so 2 nights per fortnight (rounded up) would be 39 nights (270/14*2)	39 nights
School holiday weeks 13.5 = 95 nights, so half of the school holidays (rounded up) would be 48 nights (95/2)	48 nights
Total	87 nights (24%)

1. The Tribunal is unable to identify, from the Child Support papers, how it determined that the care percentage in relation to [the child] changed so that Ms Monroy had 69% care and Mr Barnard had 31% care from 3 June 2022.

2. More broadly however, for the reasons outlined below, the Tribunal is not satisfied that there was any change in care, for the purpose of the Assessment Act, from 3 June 2022.

Ms Monroy’s evidence

1. Ms Monroy told the Tribunal that there had been no care change in June 2022. She said that [the child] had spent eight nights with Mr Barnard as a result of her family having COVID-19. Ms Monroy also told the Tribunal that in June 2022, [the child] had spent a total of 10 nights with Mr Barnard; and that in July 2022 and August 2022, [the child] had spent no nights with Mr Barnard.

2. A letter from a third party, [Mr A] was included in the Child Support papers. It was dated 14 September 2022 and stated that [the child] had spent “one week” at Mr Barnard’s partner’s home “earlier this year” due to Ms Monroy’s household having COVID-19 and [the child] testing negative. [Mr A] also stated that [the child] and his siblings were “100%” in the care of him and Ms Monroy.[7]

Mr Barnard’s evidence

[7] Child Support papers, p 72.

1. The Child Support papers include a copy of a diary provided by Mr Barnard, in which Mr Barnard stated that [the child] had contacted him on 29 May 2022, to ask if he could stay with him the weekend of 3–4 June 2022. The diary then goes on to outline the care Mr Barnard said he had of [the child] from 3–6 June 2022 (6 June 2022 being the Monday on which date, according to the diary, Mr Barnard dropped [the child] at school). The diary also includes references to care Mr Barnard said he had of [the child] from 10–20 June 2022.[8] The next entries in the diary relate to care from 13 August 2022.[9]

   [8] Child Support papers, pp 130–136.

   [9] Child Support papers, p 137.

2. Mr Barnard also provided calendar pages to Child Support for the months of June 2022 and August 2022, which appeared to show that he had 15 nights of care in June 2022 and four nights of care in August 2022.[10]

   [10] Child Support papers, pp 142–143.

3. At the hearing, Mr Barnard initially said that he had 20 nights of care for [the child] in June 2022 but when the Tribunal referred Mr Barnard to the calendar he had submitted, Mr Barnard conceded that it must have been 15 nights. The Tribunal also asked Mr Barnard what care he had for [the child] in July 2022 and Mr Barnard said he had no care for [the child] in July 2022. With regard to the calendar entries in August 2022, Mr Barnard clarified that his markings in the calendar do not differentiate between care during the day and care at night but his recollection was that he had care of [the child] for two nights in August 2022.

4. In the additional documents provided by Mr Barnard after the hearing, numbered B115-B120, Mr Barnard submitted that the additional nights that [the child] had stayed with him from June 2022 represented a change in care pattern because some of these nights were in accordance with [the child]’s wishes, which, he pointed out, were provided for in the court orders. Mr Barnard said that the care he has had of [the child] may not follow a traditional patter but has been “significant” and “should be taken into consideration”. Mr Barnard also noted that his interpretation of the evidence provided by Ms Monroy (specifically a calendar page for the month of August 2022) indicates that, in contrast to her oral evidence, a calendar provided by Ms Monroy indicates that [the child] was in Mr Barnard’s care overnight.  

The Tribunal’s findings

1. Based on the evidence before it, the Tribunal concludes that there was no change in the care pattern for [the child] from 3 June 2022 as the Tribunal is not satisfied that the pattern of care changed from that date. This is because while [the child] may have stayed with Mr Barnard for 10 nights or 15 nights in July 2022, depending on whether Ms Monroy or Mr Barnard is correct, it was not the commencement of any new pattern of care. This is because there was no care in July 2022 and either 0 nights or only 2 nights of care in August 2022, depending on whether Ms Monroy or Mr Barnard is correct. The Tribunal finds that the additional level of care Mr Barnard had in June 2022 for [the child] was not continued, regardless of whether the account of Ms Monroy or the account of Mr Barnard is to be accepted by the Tribunal. This is because, by either account, it sharply dropped off in July and August 2022.

2. Further, the Tribunal is not persuaded by Mr Barnard’s submissions that there was a change in the care pattern from 3 June 2022 on the basis of his assertion that from this date the care pattern became dependent on the preferences of [the child].

3. The Tribunal considered whether the policy provision for one-off blocks of care outlined in paragraph 8 of these Reasons applied in this case. Considering all the evidence before it, the Tribunal finds that it does not apply in this case because based on the evidence provided by Mr Barnard (his calendar for June 2022),[11] the care in June 2022 was not in one block, it was for two periods of time, and it was not likely to be extended. The Tribunal observes that in fact, the evidence shows that the level of care in June 2022 was not extended beyond then.

   [11] Child Support papers, p 142.

4. The Tribunal notes that there may have been a change in care in relation to [the child], later in the year, but it is not a matter before the Tribunal because, as far as the Tribunal is aware, there is no decision by an objections officer to be reviewed in relation to the care from a later date. It is open to either party to contact Child Support about the care of [the child] for a later period and Child Support may make a new determination of the care of [the child].

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change in care in the care of [the child] from 3 June 2022.